If the 20th Century world was characterised by Constitutionalism and Feminism, one of the ‘ism’s characterising the 21st Century is “Environmentalism”. Environmentalism stands for, as per the Encyclopaedia Britannica, ‘political and ethical movement that seeks to improve and protect the quality of the natural environment through changes to environmentally harmful human activities; through the adoption of forms of political, economic and social organisation that are thought to be necessary for, or at least conducive to, the benign treatment of the environment by humans; and through a reassessment of humanity’s relationship with nature.’

The emergence of Environmentalism as a concept was mainly due to the efforts of the international community in the form of international environmental laws. The command of environmentalism set out demands which are amplified versions of that of constitutionalism, i.e. rule of law and basic rights which extend beyond human beings such that it includes all living beings, separation of power leading to the creation of an independent environment regulation regime secured by independent executive and adjudicatory institutions. The concept of independent executive and adjudicatory institutions is of much importance, because the application of rule of law and fundamental rights beyond human existence to impose restrictions upon the arbitrariness in the exertion of authority by the State and other corporate can only be successful through separation of power.

The Supreme Court in the M.C. Mehta vs. Union of India in 1986 admitted that “in as much as environment cases involve assessment of scientific data, it was desirable to set up environment courts on a regional basis with a professional Judge and two experts, keeping in view the expertise required for such adjudication”. This judgement began the procedure of foundation of the National Green Tribunal, which was successfully done by the end of 2010.

What is the National Green Tribunal? What are its powers?

As we must be knowing, the National Green Tribunal (or, NGT) is a quasi-judicial body, the objective behind formation of which was to provide a specialized forum for effective and speedy disposal of cases pertaining to environment protection, conservation of forests and for seeking compensation for damages environment protection, conservation of forests and for seeking compensation for damages caused to people or property due to violation of environmental laws or conditions specified while granting permissions.

The NGT is empowered to hear all civil cases pertaining to issues relating to those of the environment and questions that are linked to the implementation of laws listed in Schedule I of the NGT Act. Therefore, it is clearly evident from the powers of the NGT as mentioned above, cases relating to the violation of these specified laws, as also decisions or orders made by the Government in connection these laws may be heard before this forum.

Limitations of the NGT:

One of the greatest threats that the unique circumstances of India lead its people to, is the access of justice. In case of the National Green Tribunal, certain obstacles in the access to justice are the provisions relating to the limitation of time period, as also its location in the five big cities of the country. The time, from which the NGT started functioning, the lower courts lost their jurisdiction over cases on the environment. This has led to denial of access to justice to many people due to the situation of the benches in places that are too far to reach.

Furthermore, the fact that judicial retirees are appointed in the Tribunal rather than younger people and those with academic specialisation within the framework leads to bureaucrats administering justice in areas where they have no specific specialisation. Also, notwithstanding the exemplary feats achieved by the Tribunal on various occasions, it may however be noted that in certain important cases, justice has often been delayed. It is not unknown to us that speedy disposal of cases is one major problem with the judicial system as a whole, and becomes even more pronounced when the matter relates to issues of environmentalism or environmental justice.

Environmental Alternative Dispute Resolution:

The search for appropriate institutional remedy to the obstacles posed by environmental disputes and crises should go on with much urgency. Unfortunately enough, the inability to achieve the completion of establishment of the National Environment Protection Act (NEPA) and establishment of NGT which cannot utilise its potential to the fullest has made the situation more demanding. If the Tribunal does not have the mandate to adjudicate over matters of the existing environmental bodies like the Pollution Control Board and the proposed NEPA, these bodies will ultimately create more problems than there already are, rather than solving them. Therefore, it is very necessary to figure out a robust environmental governance mechanism in the country.

Environment courts, like NGT, have definitely been a significant development in the justice disposal system of India, but, settlement through alternative dispute resolution (ADR) methods can also be an option here. Environmental ADR provides people with a structured dispute resolution mechanism whereby the rights and mutual benefits of all the stakeholders (developers, government agencies and citizens) remain secured.

Several nations across the world have promoted the system of alternative dispute resolution. They have been observed to use administrative ADR where administrative bodies specifically dedicated towards environmental regulations are mandated to resolve disputes over issues relating to the same. Some countries are even characterised by forums with internal specialisation on environmental matters meant to solve such disputes.

In India, in order to develop a satisfactory institutional mechanism of environmental governance, the existing institutions should necessarily be questioned. If we do a comparative study of the administrative ADR mechanisms of environmental dispute settlement that exist in other parts of the world, we may get an idea of what are the advantages of developing one such mechanism in our country.

For instance, in the United States, since the settlement of many complicated disputes over measures of flood control of the Snoqualmie River in Washington, using of administrative ADR to solve environmental disputes have increased. Furthermore, the U.S. Environmental Protection Agency (EPA) provides a good model of how an Environment Protection Authority should look like. And, the U.S. EPA has endorsed the application of ADR techniques to handle disputes and potential conflicts (United States EPA, 2000).

In South Korea, the central Environmental Dispute Resolution Commission (it is a quasi-judicial organisation under the Ministry of Environment) uses ADR techniques of mediation to resolve environmental disputes efficiently. It has been cited as an important method or preserving the environment and relieving national damages of health and property (Article 4 of the Environmental Dispute Adjustment Act). Up till the end of 2008, the National Environment Dispute Resolution Commission has handled more than 2,400 cases since the environmental dispute resolution mechanism has been introduced in 1991, and has solved them mostly by mediation (Cho, H.S. 2007-2008). Apart from that, 314 out of 351 cases, which approximately amount to 89% of the total, have been resolved through mediation by the Prefectural Environmental Pollution Councils. Thus, South Korea has been resolving disputes over issues of environmental concern via a structured system of dispute settlement that assures the rights of all the stakeholders in such disputes.

In between 1991 and 2003, out of 1,345 environmental disputes that had been reported, 1,016 of them were successfully settled by means of mediation. 830 negotiations out of the 1,016 settlements were agreed upon mutually by all the parties to the disputes (Ministry of Environment, Korea, 2004).

In Europe, although environmental ADR has rarely been used, the European Commission laid down the basic principles for such mediation in October, 2004. A draft directive has also been submitted to both the European Council as well as European Parliament on this, which declared mediation to be a useful device for providing an access to justice at an individual as also organisational level.

Now, what about the disputes which cannot be settled through mediation? To answer that, let us look at how Japan handles such disputes which cannot be resolved through mediation. When problems of air pollution is seen to rise in Japan, the local inhabitants file a complaint with the local government, who forwards the case to Environment Pollution Complaint Counsellors if they decide to take it up. The job of the counsellor is to hear the complaints of the residents and then try and settle the same through mediation. (Shigeru, M, 2011). In case the counsellor fails to resolve the matter, the charge is taken up by Environmental Dispute Coordination Commission (EDCC) or the Prefectural Pollution Examination Commission (PPEC), both of which are administrative commissions established as an external agency of the Prime Minister’s Office. They consist of a chairman and six commissioners, all of whom are appointed directly by the PM and are qualified to be lawyers, engineers and scholars who are well-equipped with techniques to analyse the situation and resolve the disputes. The EDCC and PPEC provide conciliation, mediation and arbitration services. The EDCC also provides adjudicatory services.

Disputes settled through ADRs can be useful to the relevant administrative agencies as it provides specified information about the violations made and harms caused to the environment and environmentalism at large. Although, it should be kept in mind that regulations should be such that they do not deter free economic activity. Thus, administrative ADRs appear to be a feasible means of settling environmental disputes, and thus help in the foundation of a more effective environmental regulatory mechanism as a whole, which would also help the administrative agencies to detect the sources of environmental disputes and create policies accordingly such that sources can be regulated in a manner which avoids violation.

Conclusion:

A successful environmental governance institution to protect the environmental diversity and rich natural resources in India, and also settle disputes arising out of the violations made with respect to the same can be made if a system is modelled on the above references. By using the comparative qualitative approach, this article tries to prove how environmental ADR can be of substantive use in strengthening the Environmental Governance machinery in India.

This paper is authored by Adwitia Maity from DEPARTMENT OF LAW, UNIVERSITY OF CALCUTTA.
It was recognized in the top 3 best papers submitted in IMW-Lions International Conclave on Conflict Resolution.

Pranjal Sinha

Pranjal Sinha, a 3rd year student in West Bengal National University of Juridical Sciences Kolkata (WBNUJS), is an ADR enthusiast. He strongly believes that the Indian Justice System should move away from the contentious procedure of litigation, and towards more collaborative mechanisms like mediation and arbitration. A less adversarial person in life, he believes in the power of meditation and is an ardent follower of the daredevil series.